KARSANBHAI R PATEL Vs. AHMEDABAD MUNICIPAL CORPORATION
LAWS(GJH)-1988-12-13
HIGH COURT OF GUJARAT
Decided on December 19,1988

KARSANBHAI R.PATEL Appellant
VERSUS
AHMEDABAD MUNICIPAL CORPORATION Respondents




JUDGEMENT

P.R.GOKULAKRISHNAN - (1.)Rule in all these petitions. In this group of petitions a question of considerable importance arises as follows:
"Is it mandatory on the part of the State Government to remove the Municipal Commissioner from office forthwith in view of Sec. 36(3) of the Bombay Provincial Municipal Corporations Act 1949 if at a meeting of the Corporation not less than five-eights of the whole number of councillors vote in favour of a resolution requiring his removal "?

(2.)As common questions were involved the petitions have been heard together and the same are being disposed of by this common judgment.
(3.)Special Civil Applications Nos. 5778 of 1988 and 5891 of 1988 are more or less similar and the reliefs prayed therein are also similar. The same so far as are relevant for the present purpose are as under: Special Civil Application No. 5778 of 1988.
"12 that writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction quashing and setting aside resolution Annexure A and to restrain respondent Nos. 1 and 2 from entertaining discussing and passing resolution Annexure A may kindly be granted;

(ii) to declare ultra vires Sec. 36(3) in so far as it relates to the question of the removal of Municipal Commissioner who is a Government servant or who holds lien in Government service by the Municipal Corporation;

(iv) to institute suitable inquiry in the question of failure to prevent and control the epidemic and to fix responsibilities for the same;

(iii-A) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction may kindly be granted quashing and setting aside the impugned resolution dated 26-8-1988 at Annexure B passed by the General Board of the Ahmedabad Municipal Corporation;

(iii-B) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction may kindly be granted directing the State Government not to act in accordance with the unlawful resolutions Annexure A & B passed by the 1st and 2nd respondents;

(iii-C) A writ of mandamus or a writ in the nature of mandamus of any other appropriate writ order or direction may kindly be granted directing the State Government to inquire into the correctness of the allegations and institutions and the contents made in the resolutions at Annexures A & B and to decide whether the aforesaid resolutions should be accepted or not;
Special Civil Application No. 5891 of 1988:
"15 A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction quashing and setting aside the impugned resolution at Annexure A dated 26-8-1988 passed by the Standing Committee of the Ahmedabad Municipal Corporation and the impugned resolution dated 26-8-1988 passed by the General Board of the Ahmedabad Municipal Corporation;

(B) This Honble Court may be pleased to declare Sec. 36 sub-sec. (3) of the Bombay Provincial Municipal Corporations Act 1949 in so far as it relates to the question of the removal of the Municipal Commissioner by the resolution passed by 5/8th majority of the whole number of the councillors of the Municipal CorPoration as unconstitutional;

(C) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction may kindly be granted directing the State Government not to act in accordance with the unlawful resolutions Annexures A & B passed by the second and third respondents;

(D) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction may kindly be granted directing the State Government to inquire into the correctness of the allegations and insinuations and the contents made in the resolutions at Annexures A & B and to decide whether the aforesaid resolutions should be accepted or not;

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